Book II. In what manner heritable rights may be carried from the debtor to the creditor. Apprising. Nature of ap prising. It was per sale. inhibiter shall have led an adjudication against his debtor's estate, TIT. XII. Of Apprisings, Adjudications, and the Judicial Sales of A Bankrupt Estates. FTER having treated of inhibitions, which is a diligence merely prohibitory, we are naturally led to explain in what manner the property of heritable rights may be carried directly from the debtor to the creditor. Two or three distinct kinds of diligences have been instituted for this purpose by our law: First, Apprisings; in place of which, adjudications have been substituted for near a century: 2dly, Certain adjudications, which were received at first by our most ancient usages, and which are used to this day; but as they were originally meant for very different purposes from apprisings, so they still differ, both in their nature and properties, from the adjudications introduced in place of these: And, 3dly, Judicial sales of bankrupt estates, made and declared by the court of session. By apprising, or comprising, (for these are synonymous terms), we understand the sentence of a sheriff, or of a messenger specially appointed sheriff for that purpose, by which the heritable rights belonging to the debtor were sold for payment of the debt due to the appriser, redeemable by the debtor within the term indulged by the law. Though adjudications have been long substituted in place of apprisings, yet this diligence must be particularly considered and explained; not only because several of our most considerable estates are at this day enjoyed under the title of expired apprisings, but because there is so near a resemblance in the nature and effects of the two diligences, that the first cannot be thoroughly understood without a distinct knowledge of the last. 2. Where a debtor, who is unable or unwilling to pay his creditors, refuses to dispose of his estate for their payment, he may be originally a pro- compelled by law to do that justice to them, which he cannot be brought to voluntarily. The diligence of apprising, when taken in this general view, is juris gentium; for methods have been laid down by the laws of all civilized nations, for taking the debtor's estate, whether real or personal, into execution for the payment of his debts. By the Roman law, L. 15. § 2. De re judic., the debtor's moveable estate was first to be sold; and, if that was not sufficient, his immoveable. In the same manner, a creditor was not permitted, by the ancient law of Scotland, to attach any of his debtor's lands or heritages, so long as he had moveable goods sufficient for satisfying his debts, St. 2. Rob. I. C. 9.; and, at first, not only the goods belonging to the debtor himself, but those of his tenants, were subjected to diligence upon a brief of distress, St. Alex. II. C. 24, § 1. In default of moveables, the sheriff was directed to give give notice to the debtor, that it behoved him to dispose of as much If 3. This statute of Alex. II. received considerable alterations, and indeed improvements, by 1469, C. 36. The goods belonging to the debtor's tenants could not be distrained for any higher sum than they owed to their landlord; the superior was entitled to a year's rent of the lands for receiving the purchaser as his vassal, on the payment of which it behoved the superior to enter him; and the term within which the debtor might redeem his lands from the purchaser, upon repayment of the purchase-money, together with the expence of infeftment, and the composition to the superior, was lengthened out to seven years. If the debtor had not lands sufficient for the creditor's payment, within the territory of the sheriff before whom decree was first recovered against him, the crown issued letters to the sheriff of the shire where his other lands lay, to expose these also to sale, in so far as there was a shortcoming. no purchaser could be found, the sheriff was required to apprise or tax the value of the lands by an inquest, and to make over to the creditor such a proportion of them as corresponded in value to the amount of the debt: And hence those judicial sales got the name of apprisings; see Mackenzie's observations on this act, 1469, C. 36. The ingenious author of Historical Law-Tracts, observes, tit. Securities upon land, that, prior to this statute 1469, creditors who were secured upon lands had the privilege of distraining their debtor's rents at short hand, without the decree of a judge obtained in consequence of a brief of distress. This he proves by a bond dated in 1418, (Appendix, NO. 2.), subjecting certain lands of the granter's property to the diligence of his creditor, in the same manner that the creditor or he might distrain their proper lands for their rents, without the authority of any judge: And from thence he concludes, first, That the poinding authorised by the act 1469, which is said to proceed on a brief of distress, relates only to executions upon personal debts, and not to those which proceed on real securities. 2dly, That that branch of the statute which indulges debtors in a right of redeeming the apprised lands within seven years, is confined to apprisings on personal debts, leaving the law, in so far as concerned those which proceed upon debita fundi, upon its former footing. 4. To prevent the expence of double diligences, where the debtor's lands lay in different shires, apprisings, in place of being executed by sheriffs, whose jurisdiction was limited each to his own county, came in the course of time to be intrusted to messengers, who were, by letters issuing from the signet, constituted judges or sheriffs in that part, and whose powers extended over the whole VOL. I. 6 v kingdom. TITLE XII. Ancient form of deducing apprisings. This diligence formerly executed only by the sheriff, came afterwards to be intrusted to messengers. kingdom. And this practice, after it was once introduced, maintained its ground, notwithstanding an express statute prohibiting it, upon a complaint exhibited by the sheriffs of an encroachment thereby made on their jurisdiction, 1540, C. 82. A blank was left in the letters of apprising, for inserting the name of any messenger whom the creditor should choose to employ; and the messenger was thereby commanded to pass to the ground of the debtor's lands, and search for moveables; and in default of them, to denounce the lands to be apprised, i. e. to make publication, both on the ground of the lands, and at the market-crosses of the head boroughs in the several jurisdictions in which they lay, that the lands themselves were to be apprised; and copies thereof were to be left by him, both on the lands and on the said market crosses. Of these letters of apprising, search for moveables, denunciation, and day and place of apprising, the messenger was, by a copy, to give notice to the debtor, either personally, or at his dwelling-house: And, by act of sederunt, June 27. 1623, preserved by Spottiswoode, Pract. p. 44, fifteen free days must have intervened between the denunciation and the actual sale or apprising of the lands, excluding both the day of denunciation and of the sale. If the messenger's execution did not specially mention, that, before denouncing the lands, he made a previous search for moveables, but had found none sufficient for clearing off the debt, the decree of apprising was subject to reduction. Upon the day prefixed for the apprising, the creditor exhibited a claim of his debt to the messenger, who remitted the examination of it to a jury or inquest. After the claim was sustained by them, an offer of the lands to be apprised was made to the debtor upon payment; and, on his failure to appear, or to make payment, the messenger interposed his authority to the verdict of the inquest, by his decree adjudging such a proportion of the debtor's lands to belong to the appriser, as was taxed by the jury to amount to the principal sum, penalty, composition to the superior, and sheriff-fee: But no part of the debtor's lands was set off to the appriser in name of interest before the Reformation, because the exacting of interest was prohibited by the Canon law. 5. The messenger at first held his court in the tolbooth or courthouse of the head borough of the shire where the lands lay; but by a dispensing clause, which was afterwards inserted of course in all letters of apprising, he was left at liberty to hold his court at Edinburgh, as the communis patria; and upon special emergencies, at other places, Stair, July 12. 1671, Heirs of Lundy, (DICT. p. 71.). This custom was probably introduced for the conveniency of the clerks to the signet, who alone could be clerks to the process of apprising, and most of them had their fixed residence at Edinburgh. As long as the rule prescribed by the act 1469 was observed, of apprising the lands by an inquest of men of the same county, who knew their value, the effect of the diligence was confined to such a proportion of the lands as was enough for clearing off the debt; but after apprisings were by dispensation allowed to be deduced at Edinburgh, where persons came frequently to be set on the inquest who were utter strangers to the value of the subject, the debtor's whole lands fell under the decree of apprising at large, without comparing their value with the extent of the debt; and by this means great estates were sometimes carried off from debtors for the most inconsiderable sums. Mackenzie, § 3. h. t. assigns a different ap different reason for this rigorous practice, viz. That the debtor, as a 7. This rule, That all heritable rights may be apprised or adjudged, extends not however to offices of trust conferred during pleasure, or even during life, upon personal regards; for though such offices bear that character of heritable, that they have a tract of future time, they imply a delectus persona, for which there is no room in apprisings or adjudications, since personal qualities are not communicable to creditors by legal diligences tHow our ancient law stood with respect to grants of titles of honour, may admit of a distinction. When titles of honour were granted by patent to a patentee, and a certain order of heirs, without any grant * See Fac. Coll. Jan. 29. 1789, Trustees of Wedderburn, Dicт. p. 10426 34°. The office of keeper of the register of seisins for a county, granted to a person during life, or quamdiu se bene gesserit, with power to name a deputy, cannot be adjudged; Fac. Coll. and Kames, Sel. Decis. Wilson, Dec. 7. 1759, Dicт. p. 165. 339 Vid. supra, t. 11. § 9. not. 33a. 34° A husband's interest jure mariti in the rents of his wife's lands is adjudgeable; Fac. Coll. Menzies, 8th Dec. 1761, Dicт. p. 5974; Calder, 19th Nov. 1818, Fac. Coll.; Steu. Ans. v. Jus MARITI, p. 174; Bank. B. 3. t. 2. § 38.; Kames, Sel. Decis. in his remarks on the case of Wilson, cit. in not. † h. p.; 1. Bell Com. 47., corrected in Addenda, No. 2. But where the lands are adjudged as being the husband's property, with a general clause of all right, title and interest which he may have therein, the husband's interest under the jus mariti has been held not to fall under this general clause, and the adjudication therefore found to be altogether null; Calder, and Bell Com. ut supr. It is hot competent to adjudge a spes successionis; Beaton, &c. 7th June 1821, (S. & B.) Neither is it competent to adjudge the right of a substitute heir of entail, to pursue a declarator of irritancy against the heir in possession; it being optional to the substitute whether he will take advantage of the irritancy, or not; Wedderburn's Trustees, cit. in not. * h. p. TITLE XII.: All rights relating to heritage might be appris ed. Whether offices of trust, titles of honour, &c. might be ap prised. Book II. Apprising of any heritable subject carries no arrears due cree. grant of lands, such titles have been ever understood to be conferred ex delectu familiæ; so as not to be transmissible from that family to a stranger, by any conveyance either voluntary or legal ; but where large tracts of land were given of old by charter, with the dignity of Earl, or Lord, or Baron, or the right of a seat in parliament annexed to the lands, it can hardly be doubted, that such grants lay open to the diligence of creditors; since it is certain that they were frequently carried from the grantees, or their heirs, even by voluntary transmission; in which cases, the conveyance could receive no support from the favour due to creditors, as legal conveyances did. Thus, the grants of the earìdoms of Ross, Wigtown, and several others, made by Robert I., and his successors, appear to have been transmitted by the grantees to strangers, who, under the title of the assignments made in their favour, enjoyed them as fully, both lands and honours, as the original grantees had done, without opposition either from the crown or the grantee's heirs, MS. Essay on Territorial Honours, by the late ingenious Mr George Chalmers *-The question, Whether offices of dignity and trust may be adjudged? was brought before the session in 1743. An adjudication of the office of King's Usher was deduced against the apparent heir-male of the family of Langton, to one of whose ancestors an heritable grant of that office had been made. In that case a variety of instances having been laid before the court, taken from our public records, by which it appeared, that offices of considerable dignity, as sheriffships, and even some of the highest, as the high constabulary of Scotland, had been transmitted from hand to hand by voluntary conveyance; the judges rightly found, a fortiori, that the office in question was subject to the legal diligence of creditors, Falc. i. 203, (Cockburn, July 23. 1747, DICT. p. 150); Kames, Rem. Decis. 82, (Same case, Cockburn, DICT. ibidem); see also Kames, Rem. Decis. 104, (Earl of Caithness, Feb. 17. 1749, DICT. p. 163) †. It cannot therefore admit of the least doubt, that a patent or grant of an office is affectable by adjudication, where the patent itself authorises a voluntary transmission, ex. gr. an office expressly granted to the patentee and his assigns; for there is no subject which the owner has a power of assigning voluntarily, which may not be also carried off by the diligence of creditors. 8. If apprising be proper to heritable subjects, a decree of apprising of a right of annualrent, or any other debitum fundi, can carry no arrears due upon the right apprised for terms prior to the decree; because, though such arrears be heritably secured, yet prior to the de- having been separated from the subject affected by the apprising before leading it, they are no longer part of it, but are moveable, and as such are affectable only by diligence proper to moveables, ex. gr. by arrestment or poinding, Durie, March 13. 1627, Macghie, (DICT. p. 136). For the same reason, apprising does not carry such of the rents of the lands apprised as have fallen due at any time prior to the decree of apprising, Ibid. Feb. 16. 1633, Harper, (DICT. p. 139). All the subjects apprised must be specially mentioned * See the cases of Stair, Cassilis, and Sutherland, particularly the last of them (which may be seen in the Library of the Faculty of Advocates), in which the question concerning territorial dignities was very fully treated. + This last case is also reported by Kilk. No. 5. voce PERSONAL AND TRANSMISSI BLE, DICT. p. 10415. |